Can One Spouse Kick Another out of the House in a Divorce in Illinois?

By Heather Frances J.D.

Divorce forces spouses to divide their property. They may agree on how to divide smaller assets like furniture and clothing, but it can be difficult to divide larger assets like the marital home, even before a divorce is final. However, Illinois spouses can be removed from the marital home before a divorce only under limited circumstances.

Equal Rights

Typically, both spouses have an equal right to access and use marital property, including the family home. This right continues until a court’s divorce decree grants possession and ownership to one spouse or the other. Without court intervention, neither spouse can legally kick the other out of the house. This means both spouses can continue to live in the house together until the divorce is final.

Illinois Marriage and Dissolution of Marriage Act

The Illinois Marriage and Dissolution of Marriage Act allows a spouse to ask the court to award her exclusive possession of the marital home until the divorce is final, effectively kicking the other spouse out of the home. However, it is not always easy for a spouse to convince the court that such an order is appropriate. The spouse wanting possession of the house must file a motion with the court and prove that her spouse is jeopardizing her mental and physical well-being or that of their children.

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When one spouse asks the court to grant him exclusive possession of the marital home, he must provide notice to the other spouse, and courts typically order a hearing before issuing a decision on such a request. At the hearing, the judge hears evidence from both sides and determines whether there is sufficient evidence to show that the family’s well-being is jeopardized by the spouses living together.

Restraining Orders

If one spouse is physically or mentally abusive to the other, the abused spouse can ask the court for an order of protection. One of the provisions a court may include is an order for the abusing spouse to leave the family residence. To issue this type of order, the court must determine that the risk of future abuse outweighs the hardship to the abusing spouse if he is forced to leave. If a spouse has evidence she is being abused, this may be an easier option than trying to get an order for exclusive possession.

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Exclusive Rights to a Home During a Divorce


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Rights on Temporary Possession of a Marital Home

When a couple marries and purchases a home together, then one files for divorce, this does not automatically grant possession of the home to the spouse who filed. If this were the case, the last spouse to get to the courthouse would be unfairly prejudiced. Both own the home and both have rights to it. A court might eventually order one spouse to leave but this almost always occurs due to bad behavior, not the filing of a divorce petition.

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